(1 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 1 of 16

No. 16-10197
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES,
Plaintiff-Appellee,
v.
MATTHEW KEYS,
Defendant-Appellant
Appeal from the United States District Court for the Eastern District of California
Criminal Case No. 2:13-CR-82 KJM (Hon. Kimberly J. Mueller)
EMERGENCY MOTION UNDER CIRCUIT RULE 27-3
& FEDERAL RULE OF APPELLATE PROCEDURE 9(b)

Appellant’s Emergency Motion for Stay of Surrender Date

Tor Ekeland
TOR EKELAND, P.C.
195 Plymouth Street
Brooklyn, NY 11201
Tel: 718-737-7264
Fax: 718-504-5417
tor@torekeland.com
Jason S. Leiderman, SBN 203336
LAW OFFICES OF JAY LEIDERMAN
5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280
jay@criminal-lawyer.me
Pro Bono Attorneys for the Defendant Matthew Keys

EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

 (2 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 2 of 16

9TH Cir. Rule 27-3 Certificate
Pursuant to 9th Cir. R. 27-3, Appellant respectfully certifies that its motion for a stay
pending appeal is an emergency motion requiring “relief … in less than 21 days” to “avoid
irreparable harm.”
Mr. Keys faces two years in federal prison for convictions under the Computer Fraud and
Abuse Act (CFAA), 18 U.S.C. 1030, and conspiracy, 18 U.S.C. 371. The underlying acts are on
appeal to the 9th Circuit on several issues, including fatal variance, the definition and scope of
“authorization” and “damage” under the CFAA, and the lack of a substantial step towards
completion on the attempt charge. These all present substantial issues for appeal. Mr. Keys is not
a flight risk, remained on release pending his trial and attended all appearances as requested, and
is not a danger to the community. On these grounds, Mr. Keys requested release pending his
appeal. The District Court for the Eastern District of California denied this release on bail or
bond on June 14, 2016.
Before filing their motion, Appellant notified counsel for the other parties; they oppose
this motion. Appellant also served counsel for each party using the 9th Circuit’s CM/ECF
system. Pursuant to 9th Cir. R. 27-3(a)(3)(i), the telephone numbers, email addresses, and office
addresses of the attorneys for the parties are as follows:
Attorneys for the United States:
Matthew D. Segal
Paul Hemesath
James A. Silver
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: 916-334-2700
Fax: 916-554-2900
Matthew.Segal@usdoj.gov
Paul.Hemesath@usdoj.gov
James.Silver@usdoj.gov
Attorneys for Matthew Keys:
EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

i

 (3 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 3 of 16

Tor Ekeland
TOR EKELAND, P.C.
195 Plymouth Street
Brooklyn, NY 11201
Tel: 718-737-7264
Fax: 718-504-5417
tor@torekeland.com
Jason S. Leiderman, SBN 203336
LAW OFFICES OF JAY LEIDERMAN
5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280
jay@criminal-lawyer.me

Dated: June 14, 2016

EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

/S/ Tor Ekeland
Tor Ekeland

ii

 (4 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 4 of 16

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................... iv
INTRODUCTION..............................................................................................................1
FACTS ................................................................................................................................1
ARGUMENT......................................................................................................................2
A.

THE APPELLATE COURT REVIEWS THE DISTRICT COURT’S
DENIAL OF RELEASE DE NOVO FOR LEGAL
DETERMINATIONS ............................................................................................2

B.

THE COURT SHOULD ORDER BAIL PENDING APPEAL
WHERE THE DEFENDANT IS NOT A FLIGHT RISK, IS NOT A
DANGER TO THE COMMUNITY, AND WHERE THE APPEAL IS
NOT FOR THE PURPOSE OF DELAY AND RAISES
SUBSTANTIAL ISSUES ON APPEAL ..............................................................3

C.

THERE ARE SUBSTANTIAL ISSUES ON APPEAL ......................................3
i. There Is A Variance Because The Government Proved A Different,
Irrelevant Crime At Trial .........................................................................4
ii. There Was No Damage Because There Was A Backup Of The Data
And No Interruption Of Service..............................................................5

D.

THE SUBSTANTIAL ISSUES PRESENTED SATISFY THE § 3143
FACTORS ..............................................................................................................6
i. The Variance Will Likely Result in a New Trial or Reversal .........................6
ii. The Lack of Damage Will Likely Result a New Trial or Reversal................6
iii. The Trial Court Applied An Incorrect CFAA Loss Instruction
Which Requires A New Trial Or Reversal ..............................................7
iv. The Evidence Was Insufficient To Establish A Substantial Step
Was Taken To Edit The Front Page Of The L.A. Times .......................7
v. The Evidence Does Not Support a Finding of a Single, Overall
Conspiracy Required to Convict Under 18 U.S.C. 371 ..........................8

E.

MATTHEW IS NEITHER A FLIGHT RISK NOR A THREAT TO
THE COMMUNITY..............................................................................................8

CONCLUSION ..................................................................................................................8
STATEMENT OF RELATED CASES............................................................................9
CERTIFICATE OF COMPLIANCE ..............................................................................9
EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

iii

 (5 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 5 of 16

TABLE OF AUTHORITIES
Cases
BHRAC, LLC v. Regency Car Rentals, LLC, No. CV 15-865-GHK MANX, 2015 WL 3561671,
(C.D. Cal. June 4, 2015) ............................................................................................................. 7
Cheney v. IPD Analytics, L.L.C., No. 08-23188-CIV, 2009 WL 1298405 (S.D. Fla. Apr. 16,
2009) ........................................................................................................................................... 5
Dana Ltd. v. Am. Axle & Mfg. Holdgins, Inc., No. 1:10-CV-450, 2012 WL 2524008 (W.D. Mich.
June 29, 2012).......................................................................................................................... 5-6
Farmers Ins. Exch. v. Steele Ins. Agency, Inc., No. 2:13-CV-00784-MCE, 2013 WL 3872950
(E.D. Cal.’ July 25, 2013) ....................................................................................................... 4, 7
Grant Mfg. & Alloying, Inc. v. McIlvain, No. CIV.A. 10-1029, 2011 WL 4467767 (E.D. Pa. Sept.
23, 2011) ..................................................................................................................................... 5
Hernandez-Cruz v. Holder, 651 F.3d 1094, 1102 (9th Cir. 2011), as amended (Aug. 31, 2011) .. 8
Herzog v. United States, 75 S. Ct. 349 (1955)................................................................................ 3
Instant Tech., LLC v. DeFazio, 40 F. Supp. 3d 989 (N.D. Ill. 2014).............................................. 5
Jones v. United States, 529 U.S. 848 (2000) .................................................................................. 6
Kotteakos v. United States, 328 U.S. 750 (1946)............................................................................ 8
Nexans Wires S.A. v. Sark-USA, Inc., 166 F. App'x 559 (2d Cir. 2006) ........................................ 4
United States v. Adamson, 291 F.3d 606 (9th Cir. 2002) ............................................................... 4
United States v. Garcia, 340 F.3d 1013 (9th Cir. 2003)................................................................. 2
United States v. Handy, 761 F.2d 1279 (9th Cir. 1985)........................................................... 2, 3, 9
United States v. Kaiser, 660 F.2d 724 (9th Cir.), cert. denied, 455 U.S. 956, 102 S.Ct. 1467, 71
L.Ed.2d 674 (1981) ..................................................................................................................... 6
United States v. Perry, 550 F.2d 524 (9th Cir.1997) ...................................................................... 8
United States v. Von Stoll, 726 F.2d 584 (9th Cir. 1984) ........................................................... 5, 6
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820) ............................................................ 6
Statutes
18 U.S.C. 1030................................................................................................................ 1, 2, 3, 4, 7
18 U.S.C. 371............................................................................................................................... i, 1
EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

iv

 (6 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 6 of 16

9th Cir. R. 27-3(a)(3)(i) ............................................................................................................... i, 1
Fed. R. App. P. 8(a)(2).................................................................................................................... 1
Other Authorities
2 Fed. Jury Prac. & Instr. § 31:09 (6th ed.) .................................................................................... 8
S. REP. 104-357 at 11 (1996) ......................................................................................................... 6

EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

v

 (7 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 7 of 16

Under Federal Rule of Appellate Procedure 9(b) Appellant Matthew Keys moves this
Court for bail pending appeal and reversal of the attached District Court's Order denying his
motion for his continued supervised release during the pendency of his appeal.
INTRODUCTION
Defendant Matthew Keys moves this Court for his continued release pending his appeal
under the same conditions he has abided by for the last three years. Matthew has shown during
this time that he is not a flight risk nor a dangerous threat to the community. His case raises
significant questions on appeal regarding the proper scope of the Computer Fraud and Abuse
Act’s (CFAA) damage and loss provisions. At trial, the district court also raised the possibility of
a variance because the proof presented to the jury was for a different crime. Despite this, the
district court denied the Defendant’s motion for bail pending appeal on June 14, 2016. Because
these are substantial appellate issues that could meet any one of the factors listed in 18 U.S.C.
3143(b), this Court should reverse the denial and grant his release pending appeal.
FACTS
On October 7, 2015, Matthew Keys was convicted by a jury in the Eastern District of
California for conspiracy to cause damage to a computer, actually damaging a computer, and
attempting to damage a computer – all in violation of the Computer Fraud and Abuse Act
(CFAA), 18 U.S.C. §§ 1030(a)(5)(A).
The case stemmed from minor edits to the headline of a trivial story on the Los Angeles
Times website on December 14, 2010. That day, using the Los Angeles Times/Tribune
Company’s content management system (“CMS”), the user “ngarcia” altered a few words in a
latimes.com story on tax cuts. Because Matthew Keys allegedly passed the user name and
password to the CMS in an Internet Relay Chat (“IRC”) room to members, he was convicted of
one count of conspiracy to violate the Computer Fraud and Abuse Act (“CFAA”), in violation of
18 U.S.C. §§ 371 and 1030(a)(5)(A); one count of knowingly transmitting a code with the intent
to cause damage to a protected computer in violation of 18 U.S.C. § 1030(a)(5)(A); and one
EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

1

 (8 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 8 of 16

count of attempt to transmit a code with the intent to cause damage to a protected computer in
violation of 18 U.S.C. § 2 and 1030(a)(5)(A).
The trial featured a great deal of testimony related to uncharged conduct, particularly in
relation to Matthew’s alleged copying of email addresses from a contestant database at the Fox40
television station he had worked at in Sacramento and his alleged sending of disparaging emails
regarding his former employer to those email addresses. Indeed, the majority of the trial focused
on this issue, with the minority of the testimony relating to the charged conduct.
On June 8, 2016, Mr. Keys filed a motion for bail pending appeal with the District Court,
to continue the release terms he had been subject to before, during, and after trial without
incident. On June 13, 2016, the United States filed a response opposing Mr. Keys’s motion for
bail pending appeal. On June 14, 2016, the Court denied the motion on the papers. This
emergency motion follows.
ARGUMENT
A. THE APPELLATE COURT REVIEWS THE DISTRICT COURT’S
DENIAL OF RELEASE DE NOVO FOR LEGAL DETERMINATIONS
Legal determinations by the district court are reviewed de novo on appeal. “In reviewing
a district court's denial of release pending appeal we consider the district court's legal
determinations de novo. We review the district court's underlying factual determinations for clear
error.” United States v. Garcia, 340 F.3d 1013, 1015 (9th Cir. 2003) (citing United States v.
Handy, 761 F.2d 1279, 1281-84 (9th Cir.1985), United States v. Peden, 891 F.2d 514, 520 (5th
Cir.1989)). Among others, the below legal determinations were incorrectly decided by the
district court.

EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

2

 (9 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 9 of 16

B. THE COURT SHOULD ORDER BAIL PENDING APPEAL WHERE THE
DEFENDANT IS NOT A FLIGHT RISK, IS NOT A DANGER TO THE
COMMUNITY, AND WHERE THE APPEAL IS NOT FOR THE
PURPOSE OF DELAY AND RAISES SUBSTANTIAL ISSUES ON
APPEAL
Mr. Keys should remain released pending his appeal. He is not a flight risk, and dutifully
abided by the District Court’s terms of release and appeared at Court as required during the
three-year period this case has been pending. He poses no danger to the community. His appeal
presents multiple substantial issues on appeal, and is not brought for any improper purpose such
as delay.
C. THERE ARE SUBSTANTIAL ISSUES ON APPEAL
The 9th Circuit defines a substantial issue as a “fairly debatable question that calls into
question the validity of the judgment.” United States v. Handy, 761 F.2d 1279, 1282-83 (9th Cir.
1985). “Substantial” defines the “level of merit required” and the type of question must be one
that is “likely to result in reversal or an order for a new trial.” Id. At 1281. This requires a
reasonable basis for appeal, not necessarily a likelihood of success on the issues. See id. (quoting
D’Aquino v. United States, 180 F.2d 271, 272 (11th Cir. 1950). The relevant question is whether
there is a “school of thought, a philosophical view, a technical argument, an analogy, an appeal
to precedent or to reason commanding respect that might possibly prevail.” Herzog v. United
States, 75 S. Ct. 349, 351 (1955); see also Handy at 1282. In short, the question is whether Mr.
Keys’s case could merit a successful appeal, not whether it will.
At trial the government spent a large amount of time discussing Matthew’s alleged role in
the “Cancerman” emails, a series of emails directed at Fox40 viewer contest entrants disparaging
Fox40, with email addresses named after characters from the t.v. show the X Files. The
government also alleged that Matthew copied a Fox40 contestant email address list. But none of
this implicates any of the elements of 18 U.S.C. 1030(a)(5)(A) and therefore was irrelevant and
highly prejudicial.

EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

3

 (10 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 10 of 16

These disparaging emails and copying of a contestant email list caused no interruption of
service, and did not impair or damage any computer system. Farmers Ins. Exch. v. Steele Ins.
Agency, Inc., No. 2:13-CV-00784-MCE, 2013 WL 3872950, at *21 (E.D. Cal.’ July 25, 2013).
To establish felony liability for this offense the Government must show “[l]oss to 1 or more
persons . . . aggregating at least $5,000 in value” 18 U.S.C.A. § 1030 (c)(4)(A)(i)(I); see also 18
U.S.C.A. § 1030(c)(4)(B). The CFAA defines “loss” as “any reasonable cost to any victim,
including the cost of responding to an offense, conducting a damage assessment, and restoring
the data, program, system, or information to its condition prior to the offense, and any revenue
lost, cost incurred, or other consequential damages incurred because of interruption of service.”
18 U.S.C. § 1030(e)(11) (emphasis added).
Costs associated with investigating business losses should also be excluded. See Nexans
Wires S.A. v. Sark-USA, Inc., 166 F. App'x 559, 563 (2d Cir. 2006) (Excluding costs “incurred
investigating business losses unrelated to actual computers or computer services.”).
i. There Is A Variance Because The Government Proved A Different,
Irrelevant Crime At Trial
During the 3-year period between the start of this case and trial, the Government
maintained its prosecution was based on the alleged editing of the L.A. Times article and access
to the L.A. Times and Tribune Company Content Management System (“CMS”). At trial, the
prosecution instead proceeded on a different, unrelated set of acts involving alleged use of a
FOX40 email list used to send harassing emails to viewers and station staff. While these facts
were known to the defense, they were background information and it was at all times understood
that the alleged article editing and CMS access formed the factual basis of the charges.
A defendant’s Fifth Amendment rights prohibit this kind of trial by surprise. “The Fifth
Amendment guarantees a criminal defendant ‘pthe] right to stand trial only on charges made by a
grand jury in its indictment.’” United States v. Adamson, 291 F.3d 606, 614 (9th Cir. 2002)
holding modified on other grounds by United States v. Larson, 495 F.3d 1094 (9th Cir. 2007)
EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

4

 (11 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 11 of 16

(quoting United States v. Garcia-Paz, 282 F.3d 1212, 1215 (9th Cir.2002)). “A variance occurs
when the charging terms of the indictment are left unaltered, but the evidence offered at trial
proves facts materially different from those alleged in the indictment.” United States v. Von Stoll,
726 F.2d 584, 586 (9th Cir. 1984) (quoting United States v. Cusmano, 659 F.2d 714, 718 (6th
Cir.1981) (emphasis in original)). Here, the evidence at trial differed vastly. The prosecution
primarily focused on a wholly different set of accusations than the conduct of which Mr. Keys
was accused of, namely providing login credentials to the CMS to a group of unindicted hackers
in an Internet Relay Chat (“IRC”) room, who then gained access and edited one article which
was restored approximately 45 minutes later. Instead, the prosecution focused on a series of
emails sent to FOX40 staff and contestants in a FOX40 contest to win an Apple iPad, sent from
email addresses referencing several characters from the X-Files (the “Cancerman Emails”).
These two sets of alleged facts involved different actors, a different timeline, different alleged
victims, and wholly different theories of how the CFAA elements would be proved at trial.
ii. There Was No Damage Because There Was A Backup Of The Data
And No Interruption Of Service
Courts across the country have sensibly held that where edited or deleted information was
backed up, or remained available in other locations, that the edits or deletions did not constitute
CFAA damage. See Instant Tech., LLC v. DeFazio, 40 F. Supp. 3d 989, 1019 (N.D. Ill. 2014)
aff'd, 793 F.3d 748 (7th Cir. 2015) (holding there was no CFAA damage where deleted
information remained available in email trash folder and on another computer accessible to the
Plaintiff.); Grant Mfg. & Alloying, Inc. v. McIlvain, No. CIV.A. 10-1029, 2011 WL 4467767, at
*8 (E.D. Pa. Sept. 23, 2011) aff'd, 499 F. App'x 157 (3d Cir. 2012) (holding that because the
records marked for deletion were still available and accessible there was no CFAA damage);
Cheney v. IPD Analytics, L.L.C., No. 08-23188-CIV, 2009 WL 1298405, at *6 (S.D. Fla. Apr.
16, 2009) (holding that the “deletion of files alone does not constitute damage. . . if the deleted
data is still available to the plaintiff through other means.”); Dana Ltd. v. Am. Axle & Mfg.
EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

5

 (12 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 12 of 16

Holdings, Inc., No. 1:10-CV-450, 2012 WL 2524008, at *6 (W.D. Mich. June 29, 2012) (holding
there was no CFAA damage where deleted files could be recovered).
D. THE SUBSTANTIAL ISSUES PRESENTED SATISFY THE § 3143
FACTORS
i. The Variance Will Likely Result in a New Trial or Reversal
The variance affected Mr. Keys’s substantial rights. “A variance between indictment and
proof does not require reversal unless it affects the substantial rights of the parties.” United
States v. Kaiser, 660 F.2d 724, 730 (9th Cir.), cert. denied, 455 U.S. 956, 102 S.Ct. 1467, 71
L.Ed.2d 674 (1981). Mr. Keys was convicted of conspiracy, but because of this variance it is
unclear which conspiracy the jury may have found him a member of. Unlike in U.S. v. Kaiser,
here the IRC chatroom forms a common link between these two sets of alleged facts, and Mr.
Keys was prejudiced by a high risk of guilt transference from one group to the other. See 660
F.2d 724, 730 (9th Cir. 1981). The acts and relevant conduct in each set of alleged facts are
vastly different, and a defense to alleged misappropriation of an email list and sending various
harassing emails would be substantially different from a defense of others’ using CMS access to
temporarily modify a news article. Cf. United States v. Von Stoll, 726 F.2d 584, 587 (9th Cir.
1984) (finding no reversal where the only variance was the difference of the victim’s identity).
Here, reversal or a new trial is necessary where Mr. Keys was subject to this impermissible
change of theory.
ii. The Lack of Damage Will Likely Result a New Trial or Reversal
The damage minimum is a jurisdictional requirement of a CFAA charge. Without
damage, there can be no conviction. Courts across the country have denied damage findings even
in more extreme cases where files were deleted but recoverable. See Sec. III(A), above. Here, no
files were deleted and the original article was restored within an hour.
This is as it should be and as the Rule of Lenity requires. See United States v. Wiltberger,
18 U.S. (5 Wheat.) 76, 95 (1820); Jones v. United States, 529 U.S. 848, 858 (2000). Otherwise,
the definition of damage under the CFAA becomes dangerously broad and would permit felony
EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

6

 (13 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 13 of 16

prosecutions for editing Microsoft Word documents without someone’s permission, even though
a saved version of the document existed. And that is essentially what the government is
prosecuting in this case: the editing of a text file that a saved version existed for. This is not what
the damage provision of the CFAA was meant to address, as evidenced by its legislative history.
The legislative history of the CFAA states that where data can be returned to its “original
condition . . . arguably … neither the computer nor its information is damaged.” See S. REP.
104-357 at 11 (1996) (discussing the difference between CFAA loss and damage).
Likewise, to allege a loss under the CFAA, “plaintiffs must identify impairment of or
damage to the computer system that was accessed without authorization.” Farmers Ins. Exch. v.
Steele Ins. Agency, Inc., No. 2:13-CV-00784-MCE, 2013 WL 3872950, at *21 (E.D. Cal.’ July
25, 2013). Without damage or impairment, there cannot be loss.
iii. The Trial Court Applied An Incorrect CFAA Loss Instruction Which
Requires A New Trial Or Reversal
Under the CFAA, loss must be directly related to responding to the offense. See 18
U.S.C. § 1030(e)(11). At trial, the Court improperly allowed testimony and instructions that
permitted an overbroad definition of loss. Losses not related to responding to the incident cannot
be included in CFAA loss calculations. See BHRAC, LLC v. Regency Car Rentals, LLC, No. CV
15-865-GHK MANX, 2015 WL 3561671, at *3 (C.D. Cal. June 4, 2015) (excluding harm caused
by theft and use of trade secret customer list obtained from CFAA violation); Farmers Ins. Exch.
at *2 (E.D. Cal. July 25, 2013) (excluding harm caused by misuse of company’s proprietary
information). Here, the loss was not sufficiently related to the intrusion, and the jury was not
instructed to limit its determination of loss to that provided in 18 U.S.C. § 1030(e)(11).
iv. The Evidence Was Insufficient To Establish A Substantial Step Was
Taken To Edit The Front Page Of The L.A. Times
Count 3, charging attempted transmission of code which caused damage, is a crime of
attempt. Attempt requires a substantial step to be taken towards its completion. No evidence
supports the allegation that Mr. Keys, or any other member of the alleged conspiracy, took any
EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

7

 (14 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 14 of 16

substantial step towards the alleged second attempt at editing an L.A. Times article. Even the
PSR admits that Mr. Keys had been “locked out of the system.” (Final Presentence Report, ECF
# 126 at p. 5). “‘Mere preparation’ to commit a crime ‘does not constitute a substantial step.’”
Hernandez-Cruz v. Holder, 651 F.3d 1094, 1102 (9th Cir. 2011), as amended (Aug. 31, 2011)
(quoting United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir.1987)). Here, there was no
substantial step taken by any party, and none was shown at trial. Without this element, the
attempt charge should be reversed or remanded for a new trial.
v. The Evidence Does Not Support a Finding of a Single, Overall
Conspiracy Required to Convict Under 18 U.S.C. 371
The Jury Instructions permitted the jury to convict regardless of whether they found a
single overarching conspiracy or multiple, smaller conspiracies. (Instruction 18, Final Jury
Instructions, ECF 118 at p. 20). This improper conflation denied Mr. Keys the defense that he
may have joined one for a limited purpose but was not party to other independent conspiracies
involving one or more of the same actors. 2 Fed. Jury Prac. & Instr. § 31:09 (6th ed.); Kotteakos
v. United States, 328 U.S. 750, 769, 66 S. Ct. 1239, 1250, 90 L. Ed. 1557 (1946); United States
v. Perry, 550 F.2d 524, 533 (9th Cir.1997).
E. MATTHEW IS NEITHER A FLIGHT RISK NOR A THREAT TO THE
COMMUNITY
Matthew appeared as required, honored every order of this Court, and never violated the
terms of his supervised release before or after trial. It would have been easy for him to flee given
the minimum terms of supervised release he was given, but he did not. Nor does he pose any
threat to the community – he was not charged or convicted, nor accused of, any violent or
dangerous acts that would pose any danger to the community if he were released pending appeal.
CONCLUSION
Defendant Matthew Keys has been free during these proceedings for the last three
years without incident. He should remain free under his current conditions given that there are
substantial issues for appeal and he is not a flight risk or threat to the community. His appeal also
EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

8

 (15 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 15 of 16

presents substantial issues which, if decided in his favor, will result in reversal or a new trial.
These factors form the basis by which bail pending appeal is decided, and he satisfies all three.
See Handy at 1283-84 (9th Cir. 1985).
Dated June 14, 2016

Respectfully Submitted,
By:

_/s/Tor Ekeland___________
Tor Ekeland
TOR EKELAND, P.C.
195 Plymouth Street
Brooklyn, NY 11201
Tel: 718-737-7264
Fax: 718-504-5417
tor@torekeland.com
Jason S. Leiderman, SBN 203336
LAW OFFICES OF JAY LEIDERMAN
5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280
jay@criminal-lawyer.me
Pro Bono Attorneys for Defendant
MATTHEW KEYS

STATEMENT OF RELATED CASES
There is a related appeal pending before this Court, under the case number 16-10197.
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief has been prepared using proportionally double-spaced 14
point Times New Roman typeface. According to the "Word Count" feature in my Microsoft
Word for Windows software, this brief contains 2,909 words up to and including the signature
lines that follow the brief's conclusion.
I declare under penalty of perjury that this Certificate of Compliance is true and correct
and that this declaration was executed on June 14, 2016.

EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

9

 (16 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-1, Page 16 of 16

By:

_/s/Tor Ekeland___________
Tor Ekeland
TOR EKELAND, P.C.
195 Plymouth Street
Brooklyn, NY 11201
Tel: 718-737-7264
Fax: 718-504-5417
tor@torekeland.com
Jason S. Leiderman, SBN 203336
LAW OFFICES OF JAY LEIDERMAN
5740 Ralston Street, Suite 300
Ventura, California 93003
Tel: 805-654-0200
Fax: 805-654-0280
jay@criminal-lawyer.me
Pro Bono Attorneys for Defendant
MATTHEW KEYS

EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

10

 (17 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-2, Page 1 of 5

EXHIBIT A
District Court's Order Denying Defendant's
Motion for Release Pending Appeal

 (18 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-2, Page 2 of 5
Case 2:13-cr-00082-KJM Document 170 Filed 06/14/16 Page 1 of 4
1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

UNITED STATES OF AMERICA,

12
13
14
15

No. 2:13-cr-82-KJM

Plaintiff,
v.

ORDER

MATTHEW KEYS,
Defendant.

16
17
18

Defendant requests that the court postpone his June 15, 2016 surrender date

19

pending his appeal of his conviction and sentence. Amend. Mot. for Release Pending Appeal

20

(Mot.), ECF No. 163. His motion was filed on June 7, 2016, and the United States opposed on

21

June 13, 2016. ECF No. 169. For the following reasons, the court DENIES the motion.

22

Defendant’s sentencing hearing was held on April 13, 2016. ECF No. 153. In

23

determining the sentence, the court allowed defendant to self-surrender with the court retaining

24

jurisdiction to modify the self-surrender date upon a showing of good cause by either side. Id.

25

The court’s determination of defendant’s current motion, whereby defendant seeks to delay his

26

self-surrender date, is governed by 18 U.S.C. § 3143(b). Section 3143(b) requires detention of a

27

sentenced defendant unless the court finds an exception applies.

28
1

 (19 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-2, Page 3 of 5
Case 2:13-cr-00082-KJM Document 170 Filed 06/14/16 Page 2 of 4
1

Exceptions to detention are available where the court finds: (1) by clear and

2

convincing evidence that defendant is not likely to flee or pose a danger to others; (2) that the

3

appeal is not being taken for delay; and (3) that the appeal “raises a substantial question of law or

4

fact likely to result in . . . reversal, . . . an order for a new trial, . . . a sentence that does not

5

include a prison term, or . . . a reduced sentence to a term of imprisonment less than the total time

6

already served plus the expected duration of the appeal process.” 18 U.S.C. § 3143(b). “A

7

‘substantial question’ is one that is fairly debatable or fairly doubtful.” United States v. Wheeler,

8

795 F.2d 839, 840 (9th Cir. 1986) (citing United States v. Handy, 761 F.2d 1279, 1283 (9th Cir.

9

1985)). As the moving party, defendant bears the burden of establishing that such an exception

10

exists. See United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990). Defendant’s motion

11

argues all three prongs. Assuming without deciding that defendant satisfies the first two prongs,

12

the court finds the third dispositive.

13

Defendant argues the United States proved a different and irrelevant crime at trial

14

other than the crime charged in the Superseding Indictment (Indictment). Mot. at 3–4. Defendant

15

also argues that there was insufficient evidence of damage, that the court applied an incorrect

16

Computer Fraud and Abuse Act (CFAA) loss instruction, and lastly, that there was insufficient

17

evidence to establish one of the elements of conspiracy or to support a finding of a single

18

overarching conspiracy. Id. at 6–7. In order for an issue to be “substantial,” it must be one that is

19

“fairly debatable,” or “fairly doubtful.” Wheeler, 795 F.2d at 840. In other words, “a ‘substantial

20

question’ is one of more substance than would be necessary to a finding that it was not frivolous.”

21

Handy, 761 F.2d at 1283. The court is unpersuaded that defendant has met this bar.

22

The United States correctly notes that Count Two of the Indictment is broader in

23

terms of time and conduct than the charged defacement of The Los Angeles Times website. ECF

24

No. 44 at 5. Specifically, Count Two charged that between October 28, 2010 and January 5,

25

2011, defendant “knowingly transmitted a program, information, code, and command, and, as a

26

result of such conduct, intentionally caused damage without authorization to a protected computer

27

. . .” Id. Defendant argues there was “a variance . . . [where] the charging terms of the indictment

28

are left unaltered, but the evidence offered at trial proves facts materially different from those
2

 (20 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-2, Page 4 of 5
Case 2:13-cr-00082-KJM Document 170 Filed 06/14/16 Page 3 of 4
1

alleged in the indictment.” Mot. at 3 (citing United States v. Von Stoll, 726 F.2d 584, 586 (9th

2

Cir. 1984)). But the United States presented evidence of defendant’s conduct in illicitly

3

procuring an email list he used to send a series of emails to FOX40 staff and contestants, all

4

within the charged time frame. Both the website defacement and the obtaining of the e-mails

5

breached the computer-based content management system (CMS) of the victim, Tribune

6

Company.

7

Defendant also argues that because the data was backed up, there was no damage;

8

the court finds this argument unpersuasive. The inability of an employee such as Samantha

9

Cohen to log in to work, and the employer’s inability to promptly change usernames and

10

passwords, and resecure the compromised system all constitute damage. Shurgard Storage Ctrs.,

11

Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121, 1126–27 (W.D. Wash. 2000).

12

Defendant further argues the court improperly allowed testimony and instructions that supported

13

and provided an overbroad definition of loss. Defendant does not identify any testimony with

14

particularity. And the final jury instruction on loss defined it as “any reasonable cost to any

15

victim, including the cost of responding to an offense, conducting a damage assessment, and

16

restoring the data, program, system, or information to its condition prior to the offense.” ECF No.

17

118, Instruction No. 20. This instruction tracked the exact language of the statute relied on in the

18

Indictment, 18 U.S.C. § 1030(e)(11).

19

Defendant argues additionally that evidence was insufficient to establish he took a

20

substantial step towards committing a crime, and thus that there was an overarching conspiracy.

21

Again, the court is unpersuaded. The United States introduced into evidence a series of computer

22

codes showing attempted logins to the CMS, and chats between defendant and sophisticated

23

hackers, including one who succeeded in modifying The Los Angeles Times website. The

24

evidence was sufficient to “cross the line between preparation and attempt by unequivocally

25

demonstrating that the crime [would] take place unless interrupted by independent

26

circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007); see also

27

Hernandez-Cruz v. Holder, 651 F.3d 1094, 1102 (9th Cir. 2011). Defendant has not explained

28
3

 (21 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-2, Page 5 of 5
Case 2:13-cr-00082-KJM Document 170 Filed 06/14/16 Page 4 of 4
1

how the difference between one overarching conspiracy and multiple conspiracies raises a

2

substantial issue of law or fact likely to result in a reversal or new sentence.

3
4
5
6

Accordingly, the court DENIES defendant’s motion. Defendant shall surrender no
later than 2:00 PM on June 15, 2016 as previously ordered.
IT IS SO ORDERED.
DATED: June 14, 2016.

7
8
UNITED STATES DISTRICT JUDGE
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

 (22 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-3, Page 1 of 2

EXHIBIT B
Rule 9-1.2(b) Declaration of Tor Ekeland

 (23 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-3, Page 2 of 2

9TH Cir. Rule 9-1.2(b) Declaration
Pursuant to 9th Cir. R. 9-1.2(b), Appellant declares that the motion at issue was submitted
to the District Court solely upon the pleadings, and thus there was no reporter’s transcript of any
proceedings. Accordingly, no transcript has been ordered, no transcript has been paid for, and
there is no estimated date of delivery of a transcript.
I, Tor Ekeland, declare under penalty of perjury that the foregoing is true and correct.
Executed On: June 14, 2016

EMERGENCY MOTION FOR STAY OF
SURRENDER DATE
No. 16-10197

/S/ Tor Ekeland
Tor Ekeland

1

 (24 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-4, Page 1 of 7

EXHIBIT C
District Court's Judgment of Conviction

 (25 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-4, Page 2 of 7
Case 2:13-cr-00082-KJM Document 155 Filed 05/05/16 Page 1 of 6
AO 245B-CAED(Rev. 09/2011) Sheet 1 - Judgment in a Criminal Case

UNITED STATES DISTRICT COURT
Eastern District of California
UNITED STATES OF AMERICA
v.
MATTHEW KEYS

JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)
Case Number: 2:13CR0082-001
Defendant's Attorney: Jason Leiderman, Tor Ekeland, & Mark Jaffe,

Retained
THE DEFENDANT:

pleaded guilty to count(s)
.
which was accepted by the court.
pleaded nolo contendere to count(s)
was found guilty on Counts 1, 2, and 3 after a plea of not guilty.
ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offenses:
Date Offense
Concluded

Count
Number

Title & Section

Nature Of Offense

18 U.S.C. § 371

Conspiracy to Transmit a Program, Code, Command, or
Information to a Computer, Intending to Cause Damage, Between
12/15/2010
on or About 12/8/2010, and on or About 12/15/2010
(Class D Felony)

1

18 U.S.C. § 1030(a)(5)(A)

Transmitting a Program, Code, Command, or Information to a
Computer, Intending to Cause Damage Between on or about
October 28, 2010, and January 5, 2011
(Class C Felony)

1/5/2011

2

18 U.S.C. § 1030(a)(5)(A)

Attempting to Transmit a Program, Code, Command, or
Information to a Computer, Intending to Cause Damage on or
about December 15, 2010
(Class C Felony)

12/15/2010

3

The defendant is sentenced as provided in pages 2 through 6 of this judgment. The sentence is imposed pursuant to the
Sentencing Reform Act of 1984.
and is discharged as to such count(s).
The defendant has been found not guilty on count(s)
dismissed on the motion of the United States.
Count (s)
Indictment is to be dismissed by District Court on motion of the United States.
Appeal rights given.
Appeal rights waived.
IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any
change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are
fully paid. If ordered to pay restitution or fine, the defendant must notify the court and United States Attorney of material changes in
economic circumstances.
4/13/2016
Date of Imposition of Judgment

Signature of Judicial Officer
Kimberly J. Mueller, United States District Judge
Name & Title of Judicial Officer
5/5/2016
Date

 (26 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-4, Page 3 of 7
Case 2:13-cr-00082-KJM Document 155 Filed 05/05/16 Page 2 of 6
AO 245B-CAED(Rev. 09/2011) Sheet 2 - Imprisonment
Page 2 of 6

DEFENDANT:MATTHEW KEYS
CASE NUMBER:2:13CR0082-001

IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:
24 months on each of Counts 1, 2 and 3, to be served concurrently to each other for a total term of 24 months.
No TSR: Defendant shall cooperate in the collection of DNA.
The court makes the following recommendations to the Bureau of Prisons:
The court recommends that the defendant be incarcerated in Lompoc, California; insofar, as this accords with security
classification and space availability.
The defendant is remanded to the custody of the United States Marshal.
The defendant shall surrender to the United States Marshal for this district
on
.
at
as notified by the United States Marshal.
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
before 2:00 PM on 6/15/2016 .
as notified by the United States Marshal.
as notified by the Probation or Pretrial Services Officer.
If no such institution has been designated, to the United States Marshal for this district.

RETURN
I have executed this judgment as follows:

Defendant delivered on
at

to
, with a certified copy of this judgment.

United States Marshal
By Deputy United States Marshal

 (27 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-4, Page 4 of 7
Case 2:13-cr-00082-KJM Document 155 Filed 05/05/16 Page 3 of 6
AO 245B-CAED(Rev. 09/2011) Sheet 3 - Supervised Release
Page 3 of 6

DEFENDANT:MATTHEW KEYS
CASE NUMBER:2:13CR0082-001

SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of :
24 months on each of Counts 1, 2 and 3, to be served concurrently to each other for a total term of 24 months.
The defendant must report to the probation office in the district to which the defendant is released within seventy-two hours of
release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of controlled
substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two (2) periodic drug
tests thereafter, not to exceed four (4) drug tests per month.
The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of future
substance abuse.
The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon.
The defendant shall cooperate in the collection of DNA as directed by the probation officer.
The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et
seq.), as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or
she resides, works, is a student, or was convicted of qualifying offense.
The defendant shall participate in an approved program for domestic violence.
If this judgment imposes a fine or a restitution obligation, it is a condition of supervised release that the defendant pay in accordance
with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional
conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.

The defendant shall not leave the judicial district without permission of the court or probation officer;
the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer;
the defendant shall answer truthfully all inquiries by the probation officer and follow instructions of the probation officer;
the defendant shall support his or her dependents and meet other family responsibilities;
the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training or
other acceptable reasons;
the defendant shall notify the probation officer ten days prior to any change in residence or employment;
the defendant shall refrain from excessive use of alcohol;
the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person
convicted of a felony unless granted permission to do so by the probation officer;
the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere, and shall permit
confiscation of any contraband observed in plain view by the probation officer;
the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law
enforcement officer;
the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without
the permission of the court;
as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s
criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to
confirm the defendant’s compliance with such notification requirement.

 (28 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-4, Page 5 of 7
Case 2:13-cr-00082-KJM Document 155 Filed 05/05/16 Page 4 of 6
AO 245B-CAED(Rev. 09/2011) Sheet 3 - Supervised Release
Page 4 of 6

DEFENDANT:MATTHEW KEYS
CASE NUMBER:2:13CR0082-001

SPECIAL CONDITIONS OF SUPERVISION
1.

The defendant shall submit to the search of his person, property, home, and vehicle by a United States probation officer, or
any other authorized person under the immediate and personal supervision of the probation officer, based upon reasonable
suspicion, without a search warrant. Failure to submit to a search may be grounds for revocation. The defendant shall warn
any other residents that the premises may be subject to searches pursuant to this condition.

2.

The defendant shall not dispose of or otherwise dissipate any of his assets until the fine and/or restitution ordered by this
Judgment is paid in full, unless the defendant obtains approval of the Court or the probation officer.

3.

The defendant shall apply all monies received from income tax refunds, lottery winnings, inheritance, judgments and any
anticipated or unexpected financial gains to any unpaid restitution ordered by this Judgment.

4.

The defendant shall provide the probation officer with access to any requested financial information.

5.

The defendant shall not open additional lines of credit without the approval of the probation officer.

6.

As directed by the probation officer, the defendant shall participate in a program of outpatient mental health treatment.

7.

As directed by the probation officer, the defendant shall participate in a co-payment plan for treatment or testing and shall
make payment directly to the vendor under contract with the United States Probation Office of up to $25 per month.

8.

The defendant shall consent to the probation officer and/or probation service representative conducting periodic unannounced
examinations of (a) any computer, or (b) computer-related device, or (c) equipment that has an internal or external modem
which is in the possession or control of the defendant. The defendant consents to retrieval and copying of all data from any
such computer, computer-related device, or equipment as well as any internal or external peripherals to ensure compliance
with conditions. The defendant consents to removal of such computer, computer-related device, and equipment for purposes
of conducting a more thorough inspection and analysis.
The defendant consents to having installed on any computer, computer-related device, and equipment, at the defendant's
expense, any hardware or software systems to monitor the use of such computer, computer-related device, and equipment at
the direction of the probation officer, and agrees not to tamper with such hardware or software and not install or use any
software programs designated to hide, alter, or delete his computer activities. The defendant consents to not installing new
hardware without the prior approval of the probation officer.

 (29 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-4, Page 6 of 7
Case 2:13-cr-00082-KJM Document 155 Filed 05/05/16 Page 5 of 6
AO 245B-CAED(Rev. 09/2011) Sheet 5 - Criminal Monetary Penalties
Page 5 of 6

DEFENDANT:MATTHEW KEYS
CASE NUMBER:2:13CR0082-001

CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the Schedule of Payments on Sheet 6.
Assessment
$300.00

TOTALS

Fine

Restitution

The determination of restitution is deferred until 6/8/2016 . An Amended Judgment in a Criminal Case (AO 245C) will be
entered after such determination.
The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified
otherwise in the priority order or percentage payment colunm below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal
victims must be paid before the United States is paid.
Name of Payee

Total Loss*

Totals

$____

Restitution Ordered Priority or Percentage
$____

Restitution amount ordered pursuant to plea agreement $
The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before
the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be
subject to penalities for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
The court determined that the defendant does not have the ability to pay interest and it is ordered that:
The interest requirement is waived for the

fine

The interest requirement for the

restitution is modified as follows:

fine

restitution

If incarcerated, payment of the fine is due during imprisonment at the rate of not less than $25 per quarter and payment shall be
through the Bureau of Prisons Inmate Financial Responsibility Program.
If incarcerated, payment of the restitution is due during imprisonment at the rate of not less than $25 per quarter and payment
shall be through the Bureau of Prisons Inmate Financial Responsibility Program.
*Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed
on or after September 13, 1994, but before April 23, 1996.

 (30 of 30)
Case: 16-10197, 06/14/2016, ID: 10015228, DktEntry: 4-4, Page 7 of 7
Case 2:13-cr-00082-KJM Document 155 Filed 05/05/16 Page 6 of 6
AO 245B-CAED(Rev. 09/2011) Sheet 6 - Schedule of Payments
Page 6 of 6

DEFENDANT:MATTHEW KEYS
CASE NUMBER:2:13CR0082-001

SCHEDULE OF PAYMENTS
Payment of the total fine and other criminal monetary penalties shall be due as follows:
A.

Lump sum payment of $
Not later than
in accordance

, or
C,

due immediately, balance due
D,

E,or

F below; or

B.

Payment to begin immediately (may be combined with

C,

D,

or

F below); or

C.

(e.g. weekly, monthly, quarterly) installments of $
over a period of
Payment in equal
years), to commence
(e.g. 30 or 60 days) after the date of this judgment; or

D.

(e.g. weekly, monthly, quarterly) installments of $
over a period of
(e.g. months or
Payment in equal
(e.g. 30 or 60 days) after release from imprisonment to a term of supervision; or
years), to commence

E.

(e.g. 30 or 60 days) after release
Payment during the term of supervised release/probation will commence within
from imprisonment. The court will set the payment plan based on an assessment of the defendants ability to pay at
that time; or

F.

Special instructions regarding the payment of crimimal monetary penalties:

(e.g. months or

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is
due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’
Inmate Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
Joint and Several
Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount,
and corresponding payee, if appropriate:
The defendant shall pay the cost of prosecution.
The defendant shall pay the following court cost(s):
The defendant shall forfeit the defendant's interest in the following property to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,
(5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.